California's Civil Rights Commission Caving to Pressure from Schwarzenegger Administration to Defend Itself from Planned Dismantlement

We broke the story on the Administration's plans on September 13, 2007 in an article, Threat to Civil Rights Enforcement in California from the Governor's Office.

At the time, we pointed out the fact that these actions were being taken unilaterally and without consultation with the legislature and just as the legislature was in the final days of its regular session. In that article, we published the letter from the legislative leadership of both houses and committee chairs, which makes reference to the pickle that the Commissioners themselves are in:

"Finally, we are disturbed by the timing of this proposal. We note that there are apparently two Commissioners seeking reappointment whose terms will expire in September, after the Legislature begins its interim recess. These Commissioners may feel that they are compelled to support the Agency's recommendation, not because it is reasonable or justified but in order to maintain their positions."

On September 17, we also published an article by Senator Sheila Kuehl, The Dismantling of the Fair Employment and Housing Commission that gives the history of the FEHC and the authorization in 1992 by the legislature for the commission to hire it's own attorneys. Kuehl pointed out that that change came about because "the legal staff of the Fair Employment and Housing Commission had been required to revise and rewrite over 90% of all OAH [Office of Administrative Hearings] decisions in this area as incorrect on both the law and Commission policy. At the time the Legislature found it shocking that hearing officers knew so little about the area and wrote such ill-informed opinions. One decision would have overruled the Commission’s own regulations. Another allowed an employer to ban all women from his workplace."

The Schwarzenegger Administration is proposing to go back to the way cases were handled when these problems persisted.

Columnist Thomas Elias on October 15, 2007 in an article entitled "Employment and housing rights in trouble" goes back even further to the Rumford Fair Housing Act was adopted in 1964 and notes the central role the FEHC has been given to enforce it:

"Enforcement was given to the Fair Employment and Housing Commission in 1981, with landlords and employers who discriminate illegally subject to fines and other penalties. The most effective form of enforcement in the housing area has often been simple orders that landlords rent to qualified candidates they had previously rejected on illegal grounds.

"But those protections of basic rights may be about to become meaningless. No, Schwarzenegger's administration doesn't propose to wipe them off the books. He can't do that by himself and he could never such a backward-looking law through the today's Legislature, with its many female and minority members.

"But he might accomplish the same purpose with tactics his appointees now propose: stripping the FEHC of its administrative law judges and transferring all the commission's hearings to the Office of Administrative Hearings (OAH), plus moving what remains of the commission staff to Sacramento and away from the urban centers of Los Angeles, San Diego, San Francisco and Fresno."

The move to get an AG opinion about the legality of all of this was seen as giving more time for a review of the Schwarzenegger Administration's actions. This is what the Sacramento Bee
had to say after the September meeting where the Commission decided to seek this information:

"A move by Gov. Arnold Schwarzenegger's administration to transfer hearings from California's civil rights commission to a state office in Sacramento was delayed Tuesday amid allegations the administration was overstepping its legal authority.

"The California Fair Employment and Housing Commission, the same body the administration is proposing to dismantle, put off a decision on the controversial move in order to consult with the state attorney general's office."

So, what's the plan? The Governor can appoint Commissioners who will go along with what his administration wants here and ride roughshod over the legislature, the policies in place since 1992, and without the benefit of a formal opinion from the Attorney General. And he can appoint these commissioners who will be able to act before the legislature reconvenes in January and before the Senate which has to confirm any appointees--and could reject them--can act on their appointments. Gubernatorial appointments to the FEHC can serve up to one year without Senate approval but if they fail confirmation by the Senate are removed.

No wonder civil rights attorney Michele Magar is quoted at the end of the Bee article as indicating this matter will be taken to court if it proceeds. Why all the secrecy and the lack of input from the current commissioners? They aren't putting a glove up as they are about to be hit.